The Courts are ignoring the law that Congess passed. In our
tricameral system of government, it is the Congress that holds the
power of the purse. The E-Government Act of 2002 (P.L. 107-347)
provides with respect to PACER fees that the “Judicial Conference
may, only to the extent necessary, prescribe reasonable fees… to
reimburse expenses incurred in providing these services.” So, they
can only charge for public access services such as PACER if those
fees are used to cover the operating expenses for those same
services. In an accompanying Senate report, Congress noted that it
“…intends to encourage the Judicial Conference to move… to a fee
structure in which this information is freely available to the
greatest extent possible.” 107. S. Rept. 174.

However, figuring out exactly how much revenue PACER generates and
how much it costs to operate is such an overcomplicated task that
only one person has ever tried to do it. In 2010, Steve Schultze,
the then Associate Director of the Center for Information Technology
Policy at Princeton, pieced together this information best anyone
could from multiple sources and produced an
analysis
that suggests that annual revenue from electronic public access
(“EPA”) services approaches $100 million while annual EPA operating
costs are closer to $20 million. The enormous surplus is used to
fund all manner of other court technology needs, such as flatscreen
monitors for jurors and audio speaker systems in courtrooms.

In 2009, Senator Lieberman sent a letter to the Judicial
Conference
expressing dismay that seven years after the passage of the
E-Government Act, “it appears that little has been done to make
these records freely available — with PACER charging a higher rate
than 2002.” Well, another six years have passed since then, and the
situation has only worsened. The courts are simply ignoring
Congressional intent and direction. One would like to quote the
Court’s own words back to itself, when the Supreme Court wrote that,
“Nothing can destroy a government more quickly than its failure to
observe its own laws… If the Government becomes a lawbreaker, it
breeds contempt for law; it invites every man to become a law unto
himself; it invites anarchy.” Mapp v.
Ohio,
367 U.S. 643 (1961).

If you added up all the money federal government entities spend on
PACER fees and just allocated it to the courts directly, then PACER
could probably be free. The lawyers in most every federal agency
use PACER too. The courts are sensitive to this and while they
announced a fee increase for the rest of us back in September 2011,
government users have been exempted from this fee increase, an
exemption set to expire on April 1, 2015. When one imagines what the
Department of Justice alone likely spends on PACER fees to look at
documents that they themselves often created one has a perfect
picture of government inefficiency. Congress should require the
courts to produce a report showing how much each federal government
entity spent annually on PACER for the last three years and then we
could evaluate whether just reducing each federal government
entity’s budget by a corresponding amount and allocating it to the
courts directly for operating a free public access system might be a
budget-neutral solution to the unreasonable burdens imposed on the
public by the current fee structure.1

Screenshot of pacer.gov website (March 2015)

Congress wants to encourage innovation and nothing would spur the
legal technology space more than opening up PACER. Addressing the
PACER problem is a “good government” issue and hence a non-partisan
issue. Congress has lousy public approval ratings right now and the
perception is that they cannot collaborate to get anything done.
Ensuring public transparency of the judiciary is something people of
every political persuasion should favor, and so it presents an
opportunity for Congress to claim an easy victory and accomplish
something really meaningful. As the current stewards of
RECAP, we are contacted on nearly a weekly
basis by someone with a commercial interest in federal court records
and the metadata contained therein, but they are all frustrated by
the enormous cost and lack of machine-friendly interfaces of the
current PACER system. If the courts made the bulk data freely
available in a machine-friendly format, Free Law Project (and likely
others) would work quickly to create APIs and other value-added
services on top of this data that would do more to further the
current burst in legal technology innovations than anything else
government could do.

The expressed desire of Congress to make PACER information free is
currently being (and has been for 13 years) ignored by the courts who
are moving in the opposite direction, making the service more costly
every few years. The federal government itself is inefficiently paying
its left hand with its right, while allowing a system to continue that
does not incentivize the courts to reduce their operational costs like a
free public system would. Finally, Congress is missing a great
opportunity to encourage an increasingly vital area of the economy.
Congress should care about PACER and—in our next post—we’ll further
outline what both Congress and others should do about it.

To address a few potential counter-arguments, let me state some
assumptions I make. First, I suspect the government entity usage of
PACER amounts to at least 20% or at least $20 million annually and that
a public access system for the federal courts could be operated and
maintained for less than $20 million annually. It is in this sense that
my proposal would be budget neutral. This would not include spending on
the courtroom technology upgrades or whatever else the courts are doing
with the PACER surplus, expenditures that I think the courts should
make. I simply believe they should be made transparently, in an
above-board manner, with express Congressional allocations for those
purposes, and not on the backs of the public paying a per-page fee for
public documents. I believe the courts are woefully underfunded in
general, but believe that Congress should allocate them the money that
they need. ↩